Santosh Kumar vs State Of Chhattisgarh
2022 Latest Caselaw 4165 Chatt

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                                                                      NAFR

          HIGH COURT OF CHHATTISGARH, BILASPURLASPUR

                                              Reserved on 17.06.2022

                                            Pronounced on 01.07.2022
                         CRR No. 452 of 2008
Santosh Kumar S/o Sukhiram Yadav, aged about 20 years, R/o Tahsil &
Village Mudpar, Police Station Janjgir, District Janjgir-Champpa, (C.G.)
                                                               ---- Applicant
                                   Versus
State of Chhattisgarh through , Through - District Magistrate, District
Janjgir-Champa (C.G.)
                                                           ---- Respondent
     ________________________________________________________
For Applicant                 :      Shri Pravin Kumar Tulsyan, Advocate
For Respondent/State          :      Shri Kapil Maini, P. L.
____________________________________________________________
                Hon'ble Shri Justice Sachin Singh Rajput

                                  CAV ORDER

  1) This revision under Section 397 read with section 401 of Code of

    Criminal Procedure, 1973 has been preferred against the judgment

    impugned dated 05.07.2008 passed by learned Sessions Judge,

    Janjgir-Champa (C.G.) in Criminal Appeal No. 43/2008 whereby the

    judgment dated 05.05.2008 passed by Chief Judicial Magistrate,

    Janjgir passed in Criminal Case No. 920/2003 convicting the applicant

    under section 25 (1) (B) of Arms Act, 1959 and sentencing him to

    undergo rigorous imprisonment for two years and fine of Rs. 500/-, in

    default of payment of fine to further undergo additional        rigorous

    imprisonment for two month, has been affirmed.

  2) Facts

of the case in brief are that on 06.06.2003 the Sub Inspector of

Police Station Janjgir was on town patrolling and he received

information from an informer that one man was roaming in village

Jarvekhurd with firearm. Thereafter, he along with his staff reached at

the spot where near the house of Ramavtar applicant was found in

suspicious condition. He was interrogated and searched and a 12 bore

country made revolver (Desi Katta) and one cartridge wrapped in

handkerchief was recovered which was hidden inside his trouser-shirt.

The articles were seized before the witnesses and seizure memo

(ExP-3) was prepared, applicant was arrested and arrest memo (ExP-

4) was prepared. Thereafter, First Information Report (ExP-5) was

registered. The seized articles were sent for examination to expert vide

letter (ExP-7). Report of the expert (ExP-1) was received which

confirmed the country made revolver (Desi Katta) as fire arms. Vide

(ExP-2) District Magistrate granted permission for prosecution.

Thereafter, on completion of investigation charge sheet was filed

before the Chief Judicial Magistrate.

3) Learned CJM framed charges under section 25(1)B of the Arms Act,

1959. The applicant denied the charge pleaded innocence. The

prosecution examined 5 witnesses and exhibited 8 documents in order

to bring home the guilt of applicant. The learned CJM after due

appreciation of the evidence available on record convicted and

sentenced the present applicant as mentioned above. On appeal being

preferred by the present applicant, his conviction and sentence came

to be affirmed by the judgment impugned. Hence this revision filed by

the applicant impugning the same.

4) Learned Counsel for the applicant submits that even if the entire case

of the prosecution is taken as it is, the ingredients of Section 25 (1)B of

Arms Act, 1959 is not made out. There is major contradiction in the

testimony of seizure witnesses and cannot be relied upon. The FIR

maker and investigating officer is the same person, therefore, the

entire investigation is polluted and conviction cannot sustain on such

investigation. In support of his submission he relied on a judgment of

Hon'ble the Supreme Court in case of Megha Singh Vs. State of

Haryana reported in (1996) SCC 709. Lastly, he submits that proviso

clause of the section which the applicant is convicted empowers the

court to impose lesser sentence than one year by recording special

and adequate reasons in the judgment. In order to buttress his

submission he would place on record that the offence was committed

in the year 2003 and since then the applicant is still facing the

continuation of prosecution. He has not misused the liberty while

granting suspension by this court. Looking to the fact that 19 years

have passed since the commission of offence, some leniency may be

shown to the applicant.

5) On the other hand, learned counsel for the respondent/State supports

the judgment impugned and submits that looking to the findings

recorded by the trial Court and subsequently confirmed by the lower

Appellate Court by the judgment impugned as to the guilt of the

applicant under Section 25 (1B) of Arms Act, 1959 no interference is

warranted. The contradiction of the seizure witnesses as alleged would

not affect the case of the prosecution as the applicant was caught red

handed with the fire arms. He further submits that the applicant has

not been able to show any prejudice even if the FIR maker and

investigation officer are one and the same. Long pendency of case

would not automatically entitle the applicant to have some leniency.

Therefore, no interference is called for and the revision is liable to be

dismissed.

6) Heard learned counsel appearing for the parties and perused the

material available on record including the judgment impugned with

utmost circumspection.

7) This Court now shall deal with the submission of the learned counsel

for the applicant with regard to material contradiction in the testimony

of the seizure witnesses. Ramavtar (PW-3) was examined as seizure

witness. In paragraph 1 he says that a revolver and other material

were seized from the applicant and he admits his signature on the

seizure memo (ExP-3). In paragraph 2 he states that article A is pistol,

article B is cartridge, article C is handkerchief which were seized from

the possession of applicant. Nothing credible came out of lengthy

cross examination of this witness which would make the testimony

unreliable. It is true that the seizure of country made revolver (Desi

Katta) is mentioned as one of the seized article and PW-3 in specific

words did not say that Desi Katta was seized. But this contradiction will

not make the testimony untruthful. Because, sum and substance of the

testimony is that a fire arms is seized and it is not expected from a

common person to differentiate between revolver, pistol or Desi Katta.

Almost similar statement was given by another seizure witness

Prabhas Kumar (PW-5) in paragraph 1 where he states that a revolver

was seized from the possession of applicant. Nothing credible has

come out in the lengthy cross examination to show that this witness

was not trustworthy. Therefore, the contradiction is not so manifest to

disbelieve the evidence of seizure witnesses. Hence, on the above

discussion I do not find any substance in the submission of the learned

counsel for the applicant with regard to contradiction in the testimony

of seizure witnesses and reject the same.

8) The, second submission of the learned counsel for the applicant is that

the investigation is polluted as FIR maker and investigation officer is

one and the same is liable to fall flat on this ground alone. It is true that

the FIR maker and investigation officer is same person but it has to be

seen that the Investigation Officer received the information of the

offence and reached to the spot and seizure was carried out in

presence of two independent witnesses who supported the case of the

prosecution. Apart from this, learned counsel for the applicant could

not point out any prejudice caused to the applicant. Therefore, this

Court does not approve this submission of the counsel for the

applicant. The case law of Megha Singh (supra) also does not support

the case of the applicant. The facts of the case cited and that of the

present one are on different footing. In the case of Megha Singh

(supra) the seizure witnesses were police official and no corroboration

was there from independent witness. In the case in hand two

independent witnesses of seizure were examined who have supported

the case of prosecution. Thus, in view of the overall evidence, this

Court is not inclined to interfere with the conviction part of the

judgment impugned.

9) This Court shall now consider the submission of the applicant with

regard to reducing the sentence already served/undergone, in view of

the proviso to the section 25 (1)B of the Arms Act, 1959. It is true that

minimum sentence as provided under the Act at the relevant time was

one year and maximum sentence was three years. However, at

present, the minimum sentence is two years and maximum sentence

is five years as substituted by the Act 48 of 2019. However proviso

clause reads as under:-

" Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year." (At present two years)

10) Therefore, it is evident that by assigning special and adequate reason

to be recorded in the judgment, this Court may impose a sentence

lesser than the minimum one prescribed under the Act. The record

makes it evident that the offence was committed in the year 2003; the

applicant has been facing prosecution since 2003; the applicant has

remained in jail for 1 month 26 days as a whole; the sentence awarded

to applicant was suspended and he was granted bail by this court on

10.07.2008; and does not appear to have misused the liberty granted

to him. Fine amount has also been deposited by the applicant. It is to

be seen that at the time of incident the applicant was a young man of

20 years and as of now he must be around 40 years of age. For 19

long years, the applicant must have gone through the mental trauma

carrying a long lasting impression in the mind that sooner or later he

again might be sent back to prison in case of dismissal of revision. In

the same breath I am persuaded to mention herein below few lines

from the judgment authored by Justice V.R. Krishna Iyer in case of

Mohammad Giasuddin Vs. State of Andhra Pradesh reported in

AIR 1977 SC 1926 :-

"Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result

of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti- social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'"

11) Therefore, after a lapse of 19 years, as no negative information is brought to the notice of this Court that the applicant has not reformed himself and his freedom in any manner is detrimental to the society at large, it may not be appropriate to send back the applicant to prison again. Therefore, in view of the aforesaid proviso and also the judgment of the Apex Court refered to above, I deem it proper to maintain the conviction of the applicant, and the sentence of two years so awarded, is reduced to the period of sentence already served/undergone by the applicant. Fine imposed upon the applicant is not altered.

12)The applicant is on bail, his bail bond is discharged. The copy of this order alongwith the records shall be sent back to the Courts below for necessary compliance and information. The criminal revision thus disposed of.

Sd/-

(Sachin Singh Rajput) Judge parul